Appeal Division Intervenes Due to Factual Errors in Employment Insurance Case

Citation: HD  v  Canada [NAME] Commission , 2026  [NAME]  84 Social Security Tribunal of Canada Appeal Division Decision Appellant: [redacted] Representative: [NAME]. Respondent: [redacted] Representative: [NAME] Decision under appeal: General Division decision dated September 12, 2025 (GE-25-2116) Tribunal member: [NAME] of hearing: In Writing Decision date: February 6, 2026 File number: AD-25-638 On this page Decision Overview Preliminary matters Issues Analysis Conclusion Decision [ 1 ] [NAME].’s appeal is allowed. The General Division based its decision on important factual errors when it found the reconsideration request was submitted to the Canada [NAME] Commission (Commission) on the incorrect date and when it calculated the delay period. [ 2 ] However, the General Division didn’t make any jurisdictional errors when it decided that it had no jurisdiction to decide the underlying issue (i.e. the weekly benefit rate and weeks of entitlement). And it had no jurisdiction to decide whether her employment was insurable. [ 3 ] I am giving the decision the General Division should have given. The outcome remains the same. The request for reconsideration was submitted more than 30 days late, but less than one year. The Commission acted in a judicial manner when they exercised their discretion and refused an extension of time to reconsider. So, I can’t intervene in its decision. Overview [ 4 ] [NAME]. is the Claimant. She was working at [NAME] and applied for [NAME] benefits on December 5, 2022. Footnote 1 [ 5 ] On May 1, 2024, the Commission decided that she was not entitled to get benefits; her weekly benefit rate changed from $550.00 to $0.00, and from 50 weeks to 0 weeks. Footnote 2 This resulted in an overpayment of $26,950.00. Footnote 3 The Commission relied on an insurability ruling from the [NAME] ( [NAME] ) that found the Claimant’s employment at [NAME] from May 2, 2022, to October 30, 2022, was not insurable employment. Footnote 4 [ 6 ] Several months later, the Claimant asked the Commission to reconsider its decision. Footnote 5 The Commission refused to reconsider its decision because her request was made late and the Claimant hadn’t shown she had a reasonable explanation for the delay and a continuing intention to request a reconsideration. Footnote 6 [ 7 ] The General Division dismissed the Claimant’s appeal. It found that her request for reconsideration was made late and that the Commission exercised its discretion in a judicial manner when it refused to extend the 30-day time limit to reconsider. Footnote 7 [ 8 ] The Claimant argues that the General Division made factual errors. Footnote 8 Preliminary matters The Claimant asked for the hearing to be held in-writing [ 9 ] The Claimant asked the Appeal Division for a written hearing. Footnote 9 I granted her request because that’s the format she wanted and I see no reason she couldn’t have a full and fair hearing in writing. Footnote 10 [ 10 ] Following that, I scheduled a case conference to discuss the format for written hearings, the types of errors I could consider, the issues under appeal, the deadlines and to answer any questions the parties might have. Footnote 11 [ 11 ] The Claimant’s representative and Commission’s representative attended the case conference. A summary letter also followed after the case conference. Footnote 12 I wrote to the Claimant to ask for clarification about her written arguments [ 12 ] The Claimant submitted her written arguments to the Appeal Division. Footnote 13 I wrote her a letter because I needed clarification about her written arguments. Footnote 14 The Claimant wrote back clarifying her arguments and her response was shared with the Commission. Footnote 15 I’ve considered her response in making this decision. I’ve also considered the Commission’s written arguments. Footnote 16 Issues [ 13 ] Did the General Division make any jurisdictional errors when it decided that it could only focus on the late reconsideration issue and the Commission’s exercise of discretion? [ 14 ] Did the General Division base its decision on any important factual errors when it concluded that the reconsideration request was made on September 27, 2024, and that the delay period was 149 days? [ 15 ] If so, how should the error or errors be fixed? Analysis The Claimant’s arguments to the Appeal Division [ 16 ] The Claimant argues that the General Division made the following errors in its decision. Footnote 17 I’ve considered her arguments and summarized the main points as follows: Footnote 18 The General Division’s errors were not limited to specific paragraphs, but throughout the decision It focused on the late filing without addressing or assessing the supporting documents and explanation that she submitted It didn’t meaningfully address or fully weigh several key pieces of evidence relating to her genuine employment and full compliance with the EI program requirements There were personal and cultural circumstances leading to the delay in filing the appeal She was under considerable personal and family stress, including undue emotional and financial burden She acted in good faith and is requesting the opportunity to re-appeal the decision and a fair assessment on the merits is required [ 17 ] The Claimant argues that the General Division made factual errors, but some of her arguments overlap with another ground of appeal. So, I’ve also considered whether the General Division made any jurisdictional errors. Footnote 19 The General Division didn’t make any jurisdictional errors when it decided that it could only deal with the late reconsideration and not the underlying issues [ 18 ] A jurisdictional error happens when the General Division didn’t decide an issue it had to decide or decided an issue it did not have the authority to decide. If the General Division made an error of jurisdiction, then I can intervene. Footnote 20 [ 19 ] [NAME] has 30 days after the day on which a decision is communicated to them to ask the Commission for a reconsideration of that decision. The Commission has the discretion to allow an extension of time. Footnote 21 [ 20 ] The General Division’s jurisdiction comes from the Commission’s reconsideration decision that is appealed to the Tribunal, and that includes a decision for further time to make a request. Footnote 22 [ 21 ] On March 10, 2025, the Commission found the Claimant’s reconsideration request was made late and refused to give her an extension of time to reconsider its decision. Footnote 23 That’s the decision the Claimant appealed to the General Division of the Tribunal. Footnote 24 [ 22 ] The General Division outlined its jurisdiction in its decision. It correctly stated that it only had jurisdiction over the Commission’s refusal to extend the timeframe to request a reconsideration of their May 1, 2024, decision. Footnote 25 [ 23 ] The General Division doesn’t have the authority to decide the question relating to the insurability of the Claimant’s employment. The law says that the [NAME] has exclusive authority to make a ruling about whether an employment is insurable. Footnote 26 The file record shows the Commission rendered a [NAME] ruling around December 27, 2018, deciding that her employment at [NAME] was not insurable. Footnote 27 And that’s what led the Commission to deciding she wasn’t entitled to get benefits. Footnote 28 [ 24 ] This means that the General Division didn’t have to address, weigh and analyze the evidence related to her employment and the compliance with EI program requirements because those are connected to the insurability of her employment. [ 25 ] I understand the Claimant is arguing that she had genuine employment, but that’s an argument she needs to make to the [NAME] . If the Claimant is not satisfied with the [NAME] ’s ruling and determination about the insurability of her employment, then she needs to follow up with them about how to appeal that ruling. [ 26 ] The General Division in this case only had authority to decide the Commission’s refusal to extend the time to ask for a reconsideration and the exercise of their discretion. The underlying decision about her weekly benefit rate and weeks of entitlement to benefits hasn’t been reconsidered by the Commission because her request for reconsideration was made too late and they wouldn’t give her an extension of time. [ 27 ] Accordingly, I find that the General Division didn’t make any jurisdictional errors in this case by focusing only on the issues before it. The General Division made important factual errors when it determined the date the Claimant asked for a reconsideration and the delay period [ 28 ] The General Division makes an important factual error if it bases its decision on a factual finding it made by ignoring or misunderstanding the evidence. If the General Division bases its decision on an important factual error, then I can intervene. Footnote 29 [ 29 ] I asked the parties for written arguments on whether the General Division made any factual errors when it decided that the Claimant had submitted her request for reconsideration to the Commission on September 27, 2024. Footnote 30 I also identified this potential issue in my reasons when I gave permission to appeal. Footnote 31 [ 30 ] The Claimant didn’t provide any written arguments about this issue specifically. But rather, her other arguments are mainly about the insurability of her employment, which I’ve already decided wasn’t before the General Division. [ 31 ] The Commission agrees that the General Division made a factual error when it determined that the Claimant’s reconsideration request was made on September 27, 2024, because it was only received by them on October 8, 2024. Footnote 32 [ 32 ] The General Division found that the Commission’s decision was communicated to the Claimant on May 1, 2024, and that she had requested a reconsideration on September 27, 2024. It determined that the delay period was 149 days. Footnote 33 [ 33 ] The file record shows that the Claimant submitted her request for reconsideration to the Commission on October 8, 2024. That’s the date the Commission stamped it as received. Footnote 34 As well, the Commission’s written rationale for their decision identifies that the Claimant requested a reconsideration on October 8, 2024. Footnote 35 [ 34 ] I find that the General Division based its decision on an important factual error when it found that the reconsideration request was made on September 27, 2024. This error also resulted in an incorrect calculation of the delay period. The evidence shows that the Commission received the Claimant’s request for reconsideration on October 8, 2024. [ 35 ] Since I have already found one error, I can intervene. I don’t need to address any other alleged errors. Fixing the error [ 36 ] There are two options for fixing an error by the General Division. Footnote 36 The first option is to send the file back to the General Division for reconsideration. The second option is to give the decision that the General Division should have given (often referred to as “substitution”). In doing so, I can make any necessary findings of fact. Footnote 37 [ 37 ] The Claimant says that the Appeal Division should reconsider the General Division’s findings, especially since she has given evidence of her genuine employment and the extraordinary circumstances affecting the delay in filing. Footnote 38 [ 38 ] The Commission says that the Appeal Division should substitute with its own decision and that the record is complete. Footnote 39 [ 39 ] The Commission submits that the Claimant’s reconsideration request was filed on October 8, 2024, so it was made late. They also submit that they acted in a judicial manner when they refused to reconsider and give her an extension of time because the Claimant didn’t have a reasonable explanation for the delay and a continuing intention to request a reconsideration based on section 1(1) of the Reconsideration Request Regulations. Footnote 40 I will give the decision the General Division should have given and substitute [ 40 ] I will give the decision the General Division should have given and substitute with my own decision. I am satisfied that the parties had a full and fair opportunity before the General Division and that the record is complete. [ 41 ] In the Claimant’s request for reconsideration, she wrote that the Commission’s decision was communicated to her on May 1, 2024. Footnote 41 [ 42 ] I find that the Commission’s decision was communicated to the Claimant on May 1, 2024. I’ve relied on what she wrote in her reconsideration request forms to make this finding. [ 43 ] I also find that the Claimant asked the Commission to reconsider its decision on October 8, 2024. That’s the date the Commission stamped and received her reconsideration request forms. I am not using the date she signed the forms because that wasn’t the date the Commission received them. [ 44 ] Given the above, the delay period in filing her request for reconsideration to the Commission was more than 30 days late, but less than one year. Because of that, only section 1(1) of the Reconsideration Request Regulations applied. Footnote 42 [ 45 ] Section 1(1) of the Reconsideration Request Regulations allows the Commission to allow a longer period to make a request for reconsideration of a decision if the Commission is satisfied that there is a reasonable explanation for requesting a longer period and the person has demonstrated a continuing intention to request a reconsideration. [ 46 ] I am adopting the General Division’s findings on the Commission’s exercise of discretion (see paras. 32-28). [ 47 ] These findings are not affected by the error I found: The Commission considered whether the Claimant had a reasonable explanation for the delay and continuing intention to request a reconsideration (s.1(1) of the Reconsideration Request Regulations). Footnote 43 The Commission reviewed and considered the Claimant’s reasons for filing her reconsideration late, namely that her children were young, her father had a stroke and hospitalized, both of whom needed full-time care and concluded that she didn’t have a reasonable explanation for the delay Footnote 44 The Commission also considered that she hadn’t shown a continuing intention because she didn’t respond to their requests for information Footnote 45 The Commission exercised its discretion in a judicial manner when it refused to give the Claimant an extension of time to request a reconsideration because it didn’t ignore any relevant evidence, consider any irrelevant evidence, didn’t act in bad faith or for an improper manner or act in a discriminatory manner Footnote 46 [ 48 ] Since the Commission exercised their discretion in a judicial manner, I cannot intervene with its decision to refuse an extension of time to reconsider its decision. Conclusion [ 49 ] The Claimant’s appeal is allowed. The General Division based its decision on important factual errors when it determined the date that she filed her reconsideration request and the delay period. [ 50 ] The General Division didn’t make any jurisdictional errors because it could only decide the late reconsideration issue and the Commission’s exercise of discretion. The underlying issues about her weekly benefit rate and weeks of entitlement were not before it. And it had no jurisdiction to decide about the insurability of her employment at [NAME], only the [NAME] can decide that issue. [ 51 ] I am substituting with my own decision. Based on the communication date of the decision, the Claimant’s reconsideration request was more than 30 days late, but less than one year. The Commission exercised their discretion in a judicial manner when they refused to give her an extension of time to reconsider. I can’t intervene in its decision. Footnotes Footnote 1 See payment chart at pages GD3-36 to GD3-38. Return to footnote 1 referrer Footnote 2 See Commission’s decision at page GD3-48. Return to footnote 2 referrer Footnote 3 See notice of debt at pages GD3-49 to GD3-50. Return to footnote 3 referrer Footnote 4 See Commission’s reference to [NAME] ( [NAME] ) ruling page GD3-46. Return to footnote 4 referrer Footnote 5 See Claimant’s request for reconsideration at pages GD3-51 to GD3-52. Return to footnote 5 referrer Footnote 6 See Commission’s refusal to reconsider at page GD3-62. Also see, section 1(1) of the Reconsideration Request Regulations . Return to footnote 6 referrer Footnote 7 See General Division decision at pages AD1A-1 to AD1A-8. Return to footnote 7 referrer Footnote 8 See Application to the Appeal Division at pages AD1-1 to AD1-9. Return to footnote 8 referrer Footnote 9 The General Division also held a written hearing, as per the Claimant’s request. Return to footnote 9 referrer Footnote 10 See section 2 of the Social Security Tribunal Regulations . Return to footnote 10 referrer Footnote 11 See pages AD0-1 to AD0-3. This information is also set out in the Tribunal’s letter to the parties granting leave on October 23, 2025. Return to footnote 11 referrer Footnote 12 See pages AD3-1 to AD3-3. Return to footnote 12 referrer Footnote 13 See Claimant’s written arguments at pages AD5-1 to AD5-3. Return to footnote 13 referrer Footnote 14 See letter to Claimant at pages AD6-1 to AD6-3. Return to footnote 14 referrer Footnote 15 See Claimant’s response at pages AD7-1 to AD7-3. Return to footnote 15 referrer Footnote 16 See Commission’s written arguments at pages AD4-1 to AD4-6. Return to footnote 16 referrer Footnote 17 See application form at page AD1-3. Return to footnote 17 referrer Footnote 18 See Claimant’s written arguments at pages A1-1 to AD1-9, AD5-1 to AD5-3 and AD7-1 to AD7-3. Return to footnote 18 referrer Footnote 19 See section 58(1)(a) of the Department of Employment and Social Development Act ( DESD Act). Return to footnote 19 referrer Footnote 20 See section 58(1)(a) of the DESD Act. Return to footnote 20 referrer Footnote 21 See section 112(1) of the [NAME] Act ( EI Act). Return to footnote 21 referrer Footnote 22 See sections 112(1) and 113 of the  EI  Act. Return to footnote 22 referrer Footnote 23 See page GD3-62. Return to footnote 23 referrer Footnote 24 See page GD2-14. Return to footnote 24 referrer Footnote 25 See paragraphs 14–18 of the General Division decision. Return to footnote 25 referrer Footnote 26 This is set out in section 90(1)(a) of EI Act. Return to footnote 26 referrer Footnote 27 See page GD3-46. Return to footnote 27 referrer Footnote 28 See pages GD3-45 and GD3-48. Return to footnote 28 referrer Footnote 29 This is a plain language wording of section 58(1)(c) of the DESD Act which says an error of fact happens when the General Division has “based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.” Return to footnote 29 referrer Footnote 30 See pages AD6-1 to AD6-3. Return to footnote 30 referrer Footnote 31 See reasons for granting leave issued on October 24, 2025, at paragraphs 9–14. Return to footnote 31 referrer Footnote 32 See page AD4-4. Return to footnote 32 referrer Footnote 33 See paragraphs 29–31 of the General Division decision. Return to footnote 33 referrer Footnote 34 See request for reconsideration at pages GD3-51 to GD3-52. Return to footnote 34 referrer Footnote 35 See pages GD3-60 to GD3-61. Return to footnote 35 referrer Footnote 36 See section 59(1) of the  DESD  Act. Return to footnote 36 referrer Footnote 37 See section 64(1) of the DESD Act. Return to footnote 37 referrer Footnote 38 See page AD7-3. Return to footnote 38 referrer Footnote 39 See page AD4-6. Return to footnote 39 referrer Footnote 40 See page GD2-6. Return to footnote 40 referrer Footnote 41 See pages GD3-51 to GD3-52. Return to footnote 41 referrer Footnote 42 Section 1(2) of the Reconsideration Request Regulations apply in cases where the delay is made after the 365-day period on which the decision was communicated to the person. Return to footnote 42 referrer Footnote 43 See paragraph 32 of the General Division decision and pages GD3-60 to GD3-61. Return to footnote 43 referrer Footnote 44 See paragraphs 33–34 of the General Division decision and page GD3-52. Return to footnote 44 referrer Footnote 45 See paragraph 35 of the General Division decision and pages GD3-57 to GD3-59. Return to footnote 45 referrer Footnote 46 See paragraph 37 of the General Division decision. This is the legal test set out in Canada (Attorney General)   v   [NAME] , A-694-94. Return to footnote 46 referrer